QUESTION: Can the SEA be used with minors?
ANSWER: Technically yes, an SEA can be signed by a natural guardian or next of kin (205.002).
QUESTION: Can an SEA be used with a distributee who is incapacitated by something other than minority?
ANSWER: Again, technically yes and under the same section related to minor heirs. The guardian of an incapacitated distributee may sign on behalf of that distributee. In this case, you will need the court-appointed guardian’s signature.
PRACTICE NOTE: Many courts will not approve a SEA if there is a minor child involved. Check with your court before spending the filing fee only to have the order rejected.
QUESTION: Can I use an SEA if there is a will?
ANSWER: No. It is specifically noted that this is a tool to be used where Decedent died intestate.
PRACTICE TIP: The legislature added the words “who died intestate” in 1995 so for a death that occurred before 1995, SEA might be appropriate for estates under $50,000 even where there was a will.
QUESTION: Can the SEA be used to transfer real property?
ANSWER: Yes, so long as the real property is homestead property “eligible to be set aside under Section 353.051”
QUESTION: Can SEA be used for a vehicle
ANSWER: Yes, but you must specifically list the vehicle by year, make, model, and VIN. When you send the client to DMV, they must bring the order, affidavit, title, gift affidavit, and title transfer application.
PRACTICE TIP: Sometimes it is easier to use the DMV’s affidavit of heirship if there is no other property to transfer.
QUESTION: Is there a time limit to file?
ANSWER: No. Just like a determination of heirship, it can be filed any time after 30 days have passed. Because no administration is granted, there is not the same four-year rule related to filing.
QUESTION: Can an SEA be used with debts?
ANSWER: Yes, however Section 205.007(b) says any distributee is liable if the debt of the estate is not paid. Assets must exceed liabilities.
PRACTICE TIP: The mechanism to enforce is not specified in the code but arguably, a creditor of an estate could pursue distributees who take assets without paying the debts of the estate.
QUESTION: Who is liable for improper transfers?
ANSWER: The person who received the transfer is the only one liable for improper distribution if the asset holder relied on the SEA and order when making the distribution.
Small Estate Affidavits: A handbook for the Texas Lawyer
This handbook is designed to assist attorneys in the use of Small Estate Affidavits. It is the author’s hope that better understanding of the tool will enable practitioners to more efficiently use them to serve a wider population including Texans with lower income. This book is not a tool for the public to prepare their own affidavit and the author highly recommends any person wanting to use one to consult with an attorney familiar with their use. Nothing in this handbook creates an attorney-client relationship, nor is it legal advice.
Currently in Kindle format but paperback is coming soon.
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Medicaid Estate Recovery Protection |
Texas specifically exempts property from MERP |
Protects from MERP, but Title Companies often resist and want to pay MERP claims. Push back. |
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Immediate Transfer of Interest |
No transfer until death |
Creates an enhanced life estate immediately but retains grantor’s full rights |
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Recording |
Must record before death of Transferor |
May record after death of Grantor |
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Who can Sign |
Only the Transferor |
Power of Attorney agent may sign on behalf of Grantor |
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Who can Revoke |
Only the Transferor |
Agent can revoke |
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Complexity & Availability |
Simpler document; available in states that allow TODD. Not all states use TODDs |
Slightly more complex; not recognized in every state |
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Tax Implications |
Transferees receive stepped-up basis at death |
Grantees receive stepped-up basis at death |
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Cost |
Usually less expensive |
Slightly more expensive due to drafting complexity |
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After Death |
Use Affidavit of Death of Transferor |
Use Affidavit of Death of Life Tenant |
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Creditor Clawback |
A personal representative has 2 years to request clawback to satisfy estate claims where estate is insufficient to satisfy obligations. |
Unclear, no caselaw at the appellate level whether a property may be clawed back like a multi-party account |
Enter your text here…
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Feature |
Muniment of Title |
Letters Testamentary |
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Purpose |
Used to transfer title to property without full administration of the estate. |
Grants authority to an executor to administer the estate fully. |
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When Used |
When there’s a valid will, no unpaid debts (except those secured by liens on real property), and no need for full administration. No Medicaid applied for and received after March 1, 2005. |
When the estate requires full administration—e.g., debts to settle, ongoing business, or multiple assets needing management. |
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Court Involvement |
Minimal – one court hearing to prove the will and order property transferred. |
Ongoing – court appoints executor and issues Letters Testamentary for ongoing estate management. |
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Executor Appointment |
No executor formally appointed; beneficiaries handle property transfer themselves. |
Executor is officially appointed with authority to act on behalf of the estate. |
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Authority Granted |
No broad powers; only a court order allowing property transfer based on the will. |
Broad powers to collect assets, pay debts, manage and distribute estate property. |
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Timeframe |
Generally faster (often weeks). |
Longer process (can take months or more). |
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Cost |
Usually less expensive (fewer court filings and no administration). |
More expensive (court supervision, notices, potential bond). |
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Best For |
Simple estates with a clear will, no disputes, and no unpaid debts (other than mortgages). |
Estates with debts, disputes, complex assets, or need for active management. |
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Example Use Case |
Transferring a home or bank account to beneficiaries when nothing else needs to be managed. |
Handling multiple properties, businesses, creditors, or lawsuits. |